Citation Nr: 1513899
Decision Date: 04/01/15 Archive Date: 04/09/15
DOCKET NO. 07-25 000 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania
THE ISSUES
1. Entitlement to service connection for type II diabetes mellitus.
2. Entitlement to service connection for chronic cervical strain with left upper extremity radiculopathy.
3. Entitlement to service connection for tendonitis of the left shoulder.
4. Entitlement to a compensable initial evaluation for bilateral hearing loss.
5. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU), for the period prior to November 9, 2009.
6. Entitlement to an evaluation in excess of 30 percent disabling for asthma (formerly evaluated as chronic obstructive pulmonary disease with bronchitis).
REPRESENTATION
Appellant represented by: Massachusetts Department of Veterans' Services
ATTORNEY FOR THE BOARD
Robert J. Burriesci, Counsel
INTRODUCTION
The Veteran served on active duty from June 1984 to August 1984, January 1988 to May 1988, and October 2004 to September 2005.
This matter is before the Board of Veterans' Appeals (Board) on appeal from July 2006, August 2006, September 2009 and October 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.
Initially the Veteran requested a hearing before a Veterans Law Judge of the Board. Subsequently, in a statement dated in January 2013, the Veteran withdrew his request for a hearing.
In July 2013 the Veteran requested entitlement to additional benefits for a dependent child based upon school attendance. In a statement dated in November 2014 the Veteran raised the issue of entitlement to service connection for peripheral neuropathy. As these issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ) the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.
The issues of entitlement to service connection for chronic cervical strain with left upper extremity radiculopathy, service connection for tendonitis of the left shoulder, increased ratings for bilateral hearing loss and asthma, and entitlement to a TDIU for the period prior to November 9, 2009, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT
Diabetes mellitus, type II, was not present until years after service.
CONCLUSION OF LAW
The criteria for service connection for diabetes mellitus, type II, have not been met. 38 U.S.C.A. §§ 1110, 1111, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
I. Duties to Notify and Assist
VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Here, in regard to the claim of entitlement to service connection for diabetes mellitus, the duty to notify was satisfied by way of a letter sent to the Veteran in April 2009.
The duty to assist has also been met and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA treatment records have been obtained, private treatment records have been associated with the claims file, the Veteran was afforded a relevant VA medical examination in August 2011.
II. Service Connection
Establishing service connection requires evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Hickson v. West, 12 Vet.App. 247 (1999); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009). For chronic diseases listed in 38 C.F.R. § 3.309(a), including diabetes mellitus, the second and third elements of service connection may be established by demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of symptoms; and (3) medical or, in certain circumstances, lay evidence of a link between the present disability and the continuity of symptoms. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed.Cir.2013). 38 C.F.R. § 3.307(a)(3) provides for presumptive service connection for chronic diseases that become manifest to a degree of 10 percent or more within 1 year from the date of separation from service.
The Veteran contends that service connection is warranted for diabetes mellitus as the condition is due to exposure to toxins and hydrocarbons from oil well fires in Iraq. He reported that he had two fasting blood tests at Kirkuk, Iraq Army Field Hospital that revealed high blood sugar and another blood test in September 2005 at Fort Dix during demobilization that showed high blood sugar.
Service treatment records dated in June 2005 and July 2005 reveal high blood glucose readings without additional comment or diagnosis. Post service treatment records dated in March 2009 and April 2009 show a medical history of diabetes mellitus.
The report of a March 2006 VA General Medical examination includes that examiner's notation that review of the endocrine system showed no signs of diabetes mellitus. Blood chemistry testing conducted as part of that examination showed a non-fasting blood glucose reading of 172.
In August 2011 the Veteran was afforded a VA medical examination which included a diagnosis of diabetes mellitus, type II. After examination and review of the claims file, the examiner noted that the Veteran's single blood glucose of 139 in 2005 was not an initial manifestation of diabetes as there was no indication that this was fasting, drawn stat. Similarly, the March 2006 blood glucose reading was not an initial manifestation of diabetes, but rather an impaired fasting glucose in that there was no other diabetes mellitus testing. The diabetes mellitus was not confirmed until 2008.
Entitlement to service connection for diabetes mellitus is not warranted. Although service treatment records reveal tests showing high blood glucose, there was no diagnosis of diabetes mellitus in service. The March 2006 VA examination included an elevated blood glucose reading but that examiner specifically noted there were no signs of diabetes mellitus and that condition was not diagnosed at that time of that examination. There is no evidence that diabetes mellitus was diagnosed within one year of the Veteran's separation from service in September 2005.
The August 2011 VA medical examiner has rendered the opinion that blood glucose reading in service in 2005 was not an initial manifestation of diabetes as there was no indication that the test was drawn fasting, drawn stat. In addition, the March 2006 blood glucose reading was not an initial manifestation of diabetes but rather of impaired fasting glucose. That same examiner found that the Veteran's diabetes was not confirmed until 2008.
The only other evidence in the record concerning the etiology of the Veteran's diabetes mellitus is the Veteran's own statements. Although lay persons are competent to provide opinions on some medical issues, the etiology of diabetes mellitus requires specialized testing which is not within the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428(2011); Jandreau v. Nicholson, 429 F.3d 1372 (Fed. Cir. 2007).
As the preponderance of the evidence is against a finding that the Veteran's diabetes mellitus is related to his active service, service connection is denied.
ORDER
Service connection for type II diabetes mellitus is denied.
REMAND
The Veteran strained his left shoulder and cervical spine in 2003 while not on active duty. It is unclear how or whether any current disability affecting the left shoulder and cervical spine is related that that injury.
Medical records dated prior to the Veteran's return to active duty in October 2004 include an August 2003 diagnosis of tendonitis of the shoulder and cervical disc/rotator cuff strain. The Veteran was cleared to return to his usual occupation with no restrictions. A March 2004 record reveals that the Veteran reported strained neck/back, turn shoulder, and myopathy down both arms, hand goes numb. In May 2004 the Veteran was noted to have chronic cervical sprain associated with some minimal attritional changes on MRI imaging in 2003, and dorsal back pain, possibly referred to the neck, possibly associated with some attritional changes, spur formation mid dorsal spine. In August 2004 the Veteran was found fully fit for duty.
Pre-deployment health assessment in October 2004 did not note any left shoulder or cervical spine disabilities. Service treatment records from the Veteran's period of active duty reveal complaints and treatment for a cervical spine condition, a notation that weakness in the left hand began three years prior, numbness of the left arm, and a diagnosis of arthritis.
None of the VA examinations conducted to date have considered whether the Veteran's left shoulder and cervical spine disabilities clearly and unmistakably preexisted service and, if so, whether they were clearly and unmistakably not aggravated by the Veteran's active service, based upon the Veteran's condition in October 2004. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). As such, the Veteran must be afforded additional examinations. McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4).
The most recent VA examination evaluating the Veteran's bilateral hearing loss was performed in June 2012. Subsequent to this examination, in a statement dated in September 2014, it was reported that "the [V]eteran has maintained that his hearing is worse and the examination is over two years old thus a new examination is needed for adjudication purposes." Although the June 2012 examination is not necessary "too old," given the Veteran's assertion that his hearing has worsened since that examination, the Board will remand for a contemporaneous VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).
In an October 2012 rating decision, the RO granted TDIU, effective from November 9, 2009. The Veteran's disability percentage ratings prior to November 9, 2009, do not currently meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a); however, a favorable decision on the issues being remanded may impact upon the Veteran's claim for TDIU. The issues of entitlement to service connection for chronic cervical strain and tendonitis of the left shoulder and increased rating bilateral hearing loss, are inextricably intertwined with the claim for TDIU prior to November 9, 2009, currently on appeal. See Harris v. Derwinski, 1 Vet. App. 180 (1991).
Nevertheless, VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001).
It is unclear when the Veteran was unemployable based upon all of his service connected disabilities. In October 2009 the Veteran was noted to not be able to keep or sustain a job since returning from Iraq. Upon examinations the Veteran reported that he was retired since 2005; however, in 2008 the Veteran was noted to be employed full time. A July 2009 VA examination report indicates that the Veteran reported being on a leave of absence from work since April 2009 for his posttraumatic stress disorder. A July 2009 VA examination report indicates that the Veteran reported that he was working full time, that duration of the employment was 20 years, and that he had lost approximately 8 weeks over the prior 12 months due to anxiety and depression. The Veteran reported to the Social Security Administration that he stopped working in March 2009. In November 2009 a doctor provided a functional assessment for a claim for Social Security Administration benefits and found that the Veteran could not meet the basic mental demands of competitive work on a sustained basis.
It is unclear whether the Veteran was unemployable based upon all of his service connected disabilities between March 2009 and November 2009. As such, the Board finds it necessary to obtain a VA medical opinion. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994); Chotta v. Peake, 22 Vet. App. 80 (2008), Vigil v. Peake, 22 Vet. App. 63 (2008).
Thereafter, if, and only if, the VA examiner's opinion finds that the Veteran was unemployable prior to November 9, 2009, and the Veteran does not meet the schedular criteria for assignment of a TDIU, the claim must be referred for consideration by the Director of C&P.
Since the claims file is being returned it should be updated to include VA treatment records compiled since June 2011. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).
In September 2009 the Veteran was granted entitlement to service connection for chronic obstructive pulmonary disease and was assigned a noncompensable evaluation effective April 2, 2009. Subsequently, in October 2011, the Veteran was granted service connection for asthma (formerly evaluated as chronic obstructive pulmonary disease with bronchitis) and was assigned an evaluation of 30 percent disabling, effective August 23, 2010. In a March 2012 statement, the Veteran expressed disagreement with the "decision on COPD." He stated that he had COPD after being exposed to toxins and hydrocarbons from oil well fires in Iraq. He continued to note that he has had severe bronchitis. The Board interprets this statement as a notice of disagreement with the evaluation and effective date assigned in October 2011. To date, the RO has not issued a statement of the case (SOC) with respect to the claim for increased rating or effective date for asthma and must do so on remand. See Manlincon v. West, 12 Vet. App. 238 (1999).
Further clarification is required as to the effect of the October 2011 decision to grant service connection for asthma. In that rating decision, the RO pointed out that ratings for coexisting respiratory conditions will be combined with each other; a single rating will be assigned under the diagnostic code which reflects the predominant disability. It appears that may be what the RO attempted to do in the October 2011 rating decision; however, the accompanying codesheet does not reflect that a noncompensable rating had been assigned for COPD for any period prior to August 23, 2010. Given the Veteran's disagreement with the "decision on COPD," the RO should clarify the action taken, to include an explanation as to whether the codesheet should reflect the earlier grant of service connection for COPD.
Accordingly, the case is REMANDED for the following action:
1. Clarify the October 2011 rating decision the granted service connection for asthma, and indicated that the disability was previously rated as COPD and clarify whether the codesheet should be changed to reflect the prior grant of service connection for COPD.
2 Thereafter, issue the Veteran an SOC with respect to his claim of increased rating and effective date for the grant of service connection for asthma, including notification of the need to timely file a Substantive Appeal to perfect his appeal on these issues. Allow the appellant the requisite period of time for a response. Only if the appellant completes an appeal as to issues by the timely filing of a substantive appeal should such issues be certified to the Board for appellate consideration.
3. Obtain updated records of all VA treatment the Veteran has received since June 2011. Any additional pertinent records identified by the appellant during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the appellant, and associated with the claims file.
4. After completion of the foregoing, schedule the Veteran for a VA audiological examination to determine the current severity of his bilateral hearing loss. The claims folder and all pertinent medical records should be made available to the examiner for review. All indicated testing should be conducted and the examiner should comment as to the functional impact of bilateral hearing loss on the Veteran's daily activities.
5. After completion of the foregoing, the Veteran must be afforded an appropriate VA medical examination(s) regarding his claimed chronic cervical strain with left upper extremity radiculopathy and tendonitis of the left shoulder disabilities. The claims file must be made available to the examiner(s) for review in conjunction with the examination(s). All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. Based on the examination and review of the record, the examiner should address the following:
Regarding each disability (left shoulder and cervical spine):
(a) Does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the Veteran have a disability prior to his entry onto active duty in October 2004?
(b) If the answer is yes, does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the preexisting disability was not aggravated by service or that any increase in disability was due to the natural progression of the disease?
Please identify any such evidence with specificity.
(c) If the answer to either (a) or (b) is no, is it at least as likely as not that the Veteran's disability had its onset in, is related to, or aggravated by the Veteran's active service?
The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression.
The examiner must provide a complete rationale for all conclusions reached.
If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).
6. The claims file should be referred to an appropriate medical professional to offer an opinion as to whether the Veteran's service-connected disabilities render him unemployable prior to November 9, 2009. The examiner should comment on the functional impairment caused solely by the Veteran's service-connected disabilities.
7. If and only if the examiner determines that the Veteran's disabilities render him unemployable prior to November 9, 2009, the Veteran's claims file should be reviewed and forwarded to the Director of VA's Compensation and Pension Service or Under Secretary for Benefits for consideration of entitlement to an TDIU for the period prior to November 9, 2009, in accordance with 38 C.F.R. § 4.16(b).
8. Then review the record and readjudicate the claims. If any of the claims remain denied, issue an appropriate supplemental SOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
______________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs